Some voters are more important than others:
Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”
For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.
Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)
Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”
In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.”
Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”
I’ve written about this twice before and some commenters (understandably angry) said that it doesn’t matter what Posner (and Stevens) say now because the deed is done.
It does matter, because we’re finally reaching the heart of this dispute. The conservative view on voting never made any sense. Voting is so unimportant that it doesn’t matter if people (here and there, whatever) are wrongfully disenfranchised AND so important that we need ever-increasing restrictions to “fight fraud.”
If one fraudulent vote is such an insult to the system that even the chance of that occurring justifies more and more restrictions, then one wrongfully disenfranchised voter is also vitally important and should justify protections. They can’t have it both ways, and they didn’t. They had it one way. Their way.
Their votes are important and can’t be “diluted” by the rest of you riffraff and their faith in the validity of elections is central and can’t be threatened even in the abstract, but your vote or your faith in the validity of elections when voters are disenfranchised? Get over it.